Relevance of the US$50,000 donation to the Tribunal’s Terms of Reference
It is accepted by the Moriarty Tribunal (and by all the relevant interested parties) that the US$50,000 donation was at all times destined for the Fine Gael party. It was absolutely never intended to be a payment to Michael Lowry in any personal capacity. The sworn evidence given to the Tribunal is absolutely consistent in this regard. Indeed the undisputed evidence is that Michael Lowry actually knew nothing about the Telenor donation until it was brought to his attention by the publication of the relevant article in the Sunday Tribune in early 2001 and the subsequent inquiries carried out by the Moriarty Tribunal.
The Moriarty Tribunal was established by the Oireachtas in 1997 to inquire into payments and related matters to Mr. Charles J. Haughey and Mr. Michael Lowry. The Tribunal’s mandate is set out in its Terms of Reference as signed into effect by Order of An Taoiseach Bertie Ahern on 26 September 1997. It is abundantly clear from those Terms of Reference that the Moriarty Tribunal has no mandate, jurisdiction or authority to inquire into political donations (or indeed any payments) to the Fine Gael party or to any other political party. The focus of its attention is supposed to be on Charles J. Haughey and Michael Lowry and on payments to those two named individuals.
Legal opinions were sought at various stages by Fine Gael and Telenor relating to the applicability of the Terms of Reference to this political donation. These legal opinions all confirmed unequivocally that the donation was wholly outside of the Terms of Reference of the Moriarty Tribunal. The Legal Opinion dated 13 March 1998 provided to Fine Gael by respected Senior Counsel James Nugent stated as follows in its closing paragraph:
“In my opinion, the payments…do not come within the terms of reference of the Moriarty Tribunal.
Firstly, the payments were not made directly or indirectly to Michael Lowry. Secondly, notwithstanding the fact that Mr. Lowry was a trustee at the time of the New York dinner, Fine Gael could not be considered to be a connected person within the meaning of the Ethics in Public Office Act 1995. Fine Gael is not a “person” nor is it an “individual’ nor is it a “body corporate”. Thirdly, even if it were a body corporate it could not be said that one of the trustees of Fine Gael “controls” that body corporate.
For the foregoing reasons I am of the opinion that the terms of reference of the Moriarty Tribunal do not encompass this particular payment”
The only party that has sought to maintain that the matter falls within the Terms of Reference of the Moriarty Tribunal is the Moriarty Tribunal itself. The Tribunal has maintained the position that as Michael Lowry was one of the Trustees of the Fine Gael party during 1995 / 1996, any payment to the party at that time would constitute a “payment” to Michael Lowry pursuant to a specific interpretation of definitions in the Ethics in Public Office Act, 1995.
The section of the Ethics in Public Office Act 1995 that is being relied upon by the Moriarty Tribunal is Section 2(2)(a).
“(2)(a) Any question whether a person is connected with another shall be determined in accordance with the following provisions of this paragraph (any provision that one person is connected with another person being taken to mean also that that other person is connected with the first mentioned person);
i. A person is connected with an individual of that person is a relative of the individual,
ii. A person, in his or her capacity as a trustee of a trust, is connected with an individual who or any of whose children or as respects whom any body corporate which he or she controls is a beneficiary of the trust,
iii. A person is connected with any person with whom he or she is in partnership;
iv. A company is connected with another person if that person has control of it or if that person and persons connected with that person together have control of it,
v. Any two or more persons acting together to secure or exercise control of a company shall be treated in relation to that company as connected with one another and with any person acting on the directions of any of them to secure or exercise control of the company.”
In summary, the donation to Fine Gael could only constitute a payment to Michael Lowry (and even then only on a pure legal technicality) if Fine Gael was a body corporate “controlled” by Michael Lowry. Fine Gael is obviously not a body corporate so the reliance on the Ethics in Public Office Act fails on this point alone. Even if Fine Gael was a body corporate, it could hardly be suggested by anyone that Michael Lowry was ever “in control” of the Fine Gael Party. Indeed, far from “controlling” Fine Gael, he was not even a member of the party at the time the monies were transferred to the party.
If the Moriarty Tribunal’s unique interpretation of its Terms of Reference was correct, then every single donation to the Fine Gael party during the 3 ½ year period when Michael Lowry was a Trustee of the party would constitute a payment to Michael Lowry and ought to have been inquired into by the Moriarty Tribunal. The absurdity of the position adopted by the Moriarty Tribunal is manifestly clear.
It should also be noted that the Moriarty Tribunal has never sought to link this payment to any act or decision of Michael Lowry; or indeed anyone else.
